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- SUPREME COURT OF THE UNITED STATES
-
- IAN HOFFMAN v. TAMMY D. HARRIS et al.
- on petition for writ of certiorari to the united
- states court of appeals for the sixth circuit
- No. 93-1044. Decided April 25, 1994
-
- The petition for a writ of certiorari is denied.
- Justice Thomas, with whom Justice Scalia joins,
- dissenting.
- Petitioner Ian Hoffman brought suit under 42 U. S. C.
- 1983 against respondents, Kentucky's Cabinet for
- Human Resources (CHR), two CHR social workers, and
- his former wife, Melisa Hoffman, alleging that they had
- deprived him of a constitutionally protected liberty
- interest in being allowed to visit his minor daughter,
- B. H. The events giving rise to the suit began when
- Melisa told the social workers that she suspected
- petitioner of sexually abusing B. H. The social workers
- obtained an ex parte order from a state court that
- suspended petitioner's visitation rights. The District
- Court held that the social workers were absolutely
- immune from damages liability under 1983 for this
- conduct. Relying on its decision in Salyer v. Patrick,
- 874 F. 2d 374 (CA6 1989), the Court of Appeals af-
- firmed. I would grant certiorari to address petitioner's
- challenge to that ruling.
- In Salyer, the Sixth Circuit held that, -due to their
- quasi-prosecutorial function in the initiation of child
- abuse proceedings,- social workers are absolutely
- immune from liability for filing juvenile abuse petitions.
- Id., at 378. Other courts addressing the question have
- agreed that social workers are entitled to absolute
- immunity under 1983 in some instances, depending on
- their conduct and the terms of the state laws pursuant
- to which they acted. See, e. g., Meyers v. Contra Costa
- County Dept. of Social Servs., 812 F. 2d 1154, 1157
- (CA9) (holding that -social workers are entitled to
- absolute immunity in performing quasi-prosecutorial
- functions connected with the initiation and pursuit of
- child dependency proceedings-), cert. denied, 484 U. S.
- 829 (1987); Vosburg v. Department of Social Servs., 884
- F. 2d 133 (CA4 1989) (granting absolute immunity to
- social workers in connection with their filing of a child
- removal petition in juvenile court); Snell v. Tunnell, 920
- F. 2d 673 (CA10 1990) (denying absolute immunity to
- social workers for conduct in seeking a protective
- custody order that did not initiate juvenile court pro-
- ceedings), cert. denied, 499 U. S. 976 (1991). These
- courts have reasoned that social workers function as
- prosecutors in certain contexts, and therefore are
- entitled to the absolute immunity that would be due a
- prosecutor performing analogous functions. Cf. Imbler
- v. Pachtman, 424 U. S. 409 (1976) (discussing prosecuto-
- rial immunity).
- Consideration of the function performed by an official
- seeking absolute immunity plays an important role in
- our immunity analysis. See, e. g., Buckley v.
- Fitzsimmons, 509 U. S. ___, ___ (1993) (slip op., at 9-10).
- Function, however, becomes significant only when
- evaluated in historical context. A related inquiry
- precedes the functional analysis: -Our initial inquiry is
- whether an official claiming immunity under 1983 can
- point to a common-law counterpart to the privilege he
- asserts.- Malley v. Briggs, 475 U. S. 335, 339-340
- (1986) (emphasis added). Although 1983 -on its face
- admits of no defense of official immunity,- -[c]ertain
- immunities were so well established in 1871, when
- 1983 was enacted, that `we presume that Congress
- would have specifically so provided had it wished to
- abolish' them.- Buckley, supra, at ___ (slip op., at 8)
- (quoting Pierson v. Ray, 386 U. S. 547, 554-555 (1967)).
- We therefore have held that some officials are, under
- certain circumstances, entitled to absolute immunity.
- See, e. g., Imbler, supra. An official seeking such
- immunity, however, must at the outset show that a
- -counterpart to the privilege he asserts- was recognized
- at common law in 1871, for -[w]here we have found that
- a tradition of absolute immunity did not exist as of
- 1871, we have refused to grant such immunity under
- 1983.- Burns v. Reed, 500 U. S. 478, 498 (1991)
- (Scalia, J., concurring in judgment in part and dissent-
- ing in part).
- The courts that have accorded absolute immunity to
- social workers appear to have overlooked the necessary
- historical inquiry; none has seriously considered whether
- social workers enjoyed absolute immunity for their
- official duties in 1871. If they did not, absolute immuni-
- ty is unavailable to social workers under 1983. See
- ibid. This all assumes, of course, that -social workers-
- (at least as we now understand the term) even existed
- in 1871. If that assumption is false, the argument for
- granting absolute immunity becomes (at least) more
- difficult to maintain. Cf. Antoine v. Byers & Anderson,
- Inc., 508 U. S. ___ (1993) (denying court reporter
- absolute immunity in large part because official court
- reporters did not begin appearing in state courts until
- the late 19th century).
- It may be argued that the Sixth Circuit and other
- courts have effectively identified a common law counter-
- part to the modern social worker for purposes of the
- immunity analysis: the 1871 prosecutor. In reasoning
- that the social worker functions as a prosecutor in
- performing certain duties, these courts essentially have
- suggested that, by analogy, the historically-rooted
- immunity for prosecutors should apply to social workers.
- In the absence of a detailed examination of the immuni-
- ty (if any) that applied to social workers in 1871,
- however, such an analogy must be suspect. But even
- putting historical concerns aside, it is not clear to me
- that the functional analysis of the Sixth Circuit is
- correct. I am not convinced that social workers, who
- often are involved in civil family welfare proceedings,
- can ever function as prosecutors for purposes of 1983
- immunity analysis. Cf. Imbler, supra, at 430 (absolute
- prosecutorial immunity extends to those functions
- -intimately associated with the judicial phase of the
- criminal process-) (emphasis added).
- Of course, the decision below and other decisions
- granting absolute immunity to social workers may be
- premised more on the notion that absolute immunity
- serves important policy concerns than on either histori-
- cal or functional analyses. See, e. g., Meyers, 812 F. 2d,
- at 1157. To the extent they are so based, they are mis-
- guided: The federal courts -do not have a license to
- establish immunities from 1983 actions in the interests
- of what [they] judge to be sound public policy.- Tower
- v. Glover, 467 U. S. 914, 922-923 (1984).
- We should address the important threshold question
- whether social workers are, under any circumstances,
- entitled to absolute immunity. Accordingly, I respect-
- fully dissent.
-